Werline v. Colvin

Filing
34

ORDER - IT IS ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. (See document for further details). Signed by Magistrate Judge John Z Boyle on 3/19/15. (LAD)

1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Barbara Jo Werline,
No. CV-13-02316-PHX-JZB
Plaintiff,
10
11
v.
12
ORDER
Carolyn W. Colvin,
13
Defendant.
14
15
16
Plaintiff Barbara Jo Werline seeks judicial review and reversal of the final
17
decision of the Commissioner of the Social Security Administration (“SSA”) denying her
18
application for Social Security disability benefits.1 Because the decision of the
19
Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based
20
on legal error, the Court will affirm the Commissioner’s decision.
I.
21
Plaintiff was born in October 1951. She has a high school education and has
22
23
Background
previously worked as a data entry clerk and telephone sales representative.
24
On July 20, 2010, Plaintiff filed an application for Social Security disability
25
insurance benefits, supplemental security income, and disabled widow’s benefits under
26
Title II and Title XVI of the Social Security Act. In her application, Plaintiff alleges
27
28
1
This matter is suitable for resolution based on the briefs. Accordingly, the Court denies
Plaintiff’s request for oral argument. See LRCiv. 7.2(f).
1
disability beginning June 1, 2007. Her application was denied initially on December 8,
2
2010, and upon reconsideration on May 15, 2011. On March 9, 2012, she appeared with
3
her attorney and testified at a hearing before the ALJ. A vocational expert also testified.
4
On July 26, 2012, the ALJ issued a decision that Plaintiff was not disabled within
5
the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request
6
for review of the hearing decision, making the ALJ’s decision final.
7
II.
Plaintiff’s Medical History
8
At the end of July 2007, Plaintiff went to the emergency room complaining of
9
nausea, vomiting, leg pain, and weakness. A.R. 649. She was admitted to the hospital
10
with acute renal failure due to diabetes and diabetic neuropathy of the legs. A.R. 394,
11
397. She was discharged in good condition after several days, but returned later
12
complaining of dizziness, weakness, increased pulse, and left leg pain. A.R. 349-56, 471-
13
72. Plaintiff was diagnosed with gastrointestinal bleeding with anemia. A.R. 623-645. In
14
September 2008, Dr. Mark Tosca, her treating physician at the time, noted that the
15
diabetes was “diet controlled.” A.R. 449.
16
Plaintiff saw Dr. Tosca in October, November, and December 2007. Dr. Tosca’s
17
notes report that Plaintiff said she was “feeling a lot better” and “doing fairly well.” A.R.
18
457. At the same time, MRIs and x-rays of the Plaintiff’s lower back revealed an old
19
compression fracture in her mid-back and degenerative changes in her lower back. A.R.
20
493-94, 499, 502, 513.
21
In December 2007, Plaintiff saw Dr. George C. Parides and complained of
22
increased shortness of breath and wheezing. A.R. 344-45. She reported only wheezing
23
upon “significant exertion such as yard work.” A.R. 344. Plaintiff stated that she did not
24
feel she had “too much difficulty with shortness of breath when she [went] shopping or
25
even walking from her car to [a doctor’s office].” Id.
26
In July 2008, Plaintiff saw Dr. Tosca, complaining of right left pain. She
27
complained she could not rest much because she was caring for five children. A.R. 444-
28
47.
-2-
1
In March 2009, Plaintiff saw Dr. Asim Khan for pain management. She was
2
diagnosed with degeneration of the lower back with disc bulge, radiculopathy, and
3
chronic pain syndrome. A.R. 511. On examination, Dr. Khan noted that Plaintiff was
4
able to heel-walk, toe-walk, squat, and climb up on the examination table without
5
difficulty. A.R. 514. Dr. Khan continued Plaintiff’s medication management and
6
prescribed Methadone and epidural steroid injections. A.R. 511. In April 2009, Plaintiff
7
reported she was doing well. A.R. 551. She reported her pain was better controlled with
8
medication and she had no side effects. Id. However, she still had leg pain. Id.
9
In June 2009, Plaintiff followed up with Dr. Khan. A.R. 903-04. She reported
10
improvement in her pain, functioning, and quality of life with epidural injections and
11
medications. Id.
12
In December 2009, Plaintiff went to the emergency room because she was
13
vomiting blood and was diagnosed with gastrointestinal hemorrhaging due to gastritis
14
and esophagitis. A.R. 565. She also had gallstones and acute renal failure. She underwent
15
an ileostomy to remove a portion of her colon and her gallbladder due to infection. A.R.
16
722-23. During the surgery, she had a small heart attack. A.R. 724-27. In January 2010,
17
Plaintiff followed up with her surgeon. A.R. 716. She reported being easily fatigued and
18
having loose stools due to the length of the small intestine that was resected. Id.
19
In February 2010, Plaintiff saw Dr. Sy for follow-up care. A.R. 434-35. Dr. Sy
20
noted that the Plaintiff had stopped smoking and was off her inhalers. A.R. 434. The
21
Plaintiff’s physical exam was normal. The physician found a full range of motion in her
22
back. By March 2010, Plaintiff reported to Dr. Fang that she was “nearly back to full
23
activity” and that medication was helping with diarrhea. A.R. 718.
24
In March 2010, Plaintiff saw cardiologist Himanshu H. Shukla, M.D. A.R. 730-32.
25
She reported walking for exercise one to two times a week. A.R. 730. She was also
26
completing household chores. Id. Diagnostic tests showed Plaintiff had average exercise
27
tolerance and a normal heart rate. Id.
28
In December 2010, Plaintiff underwent a consultative examination by Elizabeth A.
-3-
1
Ottney, D.O. A.R. 768-78. Plaintiff stated that her diabetes was controlled by her diet.
2
A.R. 771. She also said she had never been hospitalized for back pain. A.R. 771. Dr.
3
Ottney performed a pulmonary function test and found no evidence of acute respiratory
4
illness and said that obstruction was unlikely. A.R. 768, 773. Dr. Ottney found Plaintiff
5
had normal muscle strength, balance, coordination, stance, gait, range of motion, and
6
motor skills. A.R. 773. Dr. Ottney opined that Plaintiff was capable of occasionally
7
lifting 20 pounds and frequently lifting 10 pounds without any limitations in standing,
8
walking, sitting, climbing ramps and stairs, stooping, kneeling, crouching, crawling,
9
reaching, handling, fingering, or feeling. A.R. 774-77.
10
In the same month, state agency physician Dr. James J. Green reviewed the record
11
and opined that Plaintiff was capable of occasionally lifting 20 pounds and frequently
12
lifting 10 pounds. A.R 50-52.
13
In January 2011, Dr. Shukla reported that Plaintiff had increased leg pain with
14
walking, but no other new symptoms. A.R. 792. Plaintiff continued to exercise and
15
participate in household chores. A.R. 793. In May 2011, state agency physician Dr.
16
Christopher Mahoney confirmed Dr. Green’s opinion. A.R. 87.
17
In March 2011, treating physician Dr. Sy opined that Plaintiff could lift or carry
18
fewer than 10 pounds occasionally and frequently, stand or walk less than two hours in an
19
eight hour day, sit only three hours in an eight-hour day, and alternate sitting and
20
standing every half hour. A.R. 908-10. She also found that Plaintiff could never climb,
21
balance, stoop, kneel, crouch, or crawl. A.R. 908-10. Dr. Sy found that Plaintiff could
22
frequently handle and feel and occasionally reach and use fine manipulation with her
23
hands, but was restricted from working around heights, machinery, extreme temperatures,
24
chemicals, dust, or noise. A.R. 908-10.
25
In September 2011, Dr. Shukla reported a negative nuclear stress test. A.R. 890. In
26
the follow-up, Plaintiff told Dr. Shukla that she was still exercising by walking a couple
27
times a week and was able to complete household chores. A.R. 891. She denied chest
28
pain, shortness of breath, or lightheadedness. A.R. 890.
-4-
1
In May 2012, Plaintiff told consultative examiner Carol McLean, Ph.D., that she
2
got up in the morning to get her grandchildren to school and then did chores. A.R. 978-
3
80. These chores included mopping, washing dishes using a dishwasher, laundry, and
4
folding clothes. Id. Plaintiff told Dr. McLean that she bought groceries, made meals, and
5
played games with her grandchildren. Id.
6
III.
Standard of Review
7
The district court reviews only those issues raised by the party challenging the
8
ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
9
may set aside the Commissioner’s disability determination only if the determination is
10
not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F. 3d
11
625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a
12
preponderance, and relevant evidence that a reasonable person might accept as adequate
13
to support a conclusion considering the record as a whole. Id. In determining whether
14
substantial evidence supports a decision, the court must consider the record as a whole
15
and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.
16
As a general rule, “[w]here the evidence is susceptible to more than one rational
17
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be
18
upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).
19
IV.
The ALJ’s Five-Step Sequential Evaluation
20
To determine whether a claimant is disabled for purposes of the Social Security
21
Act, the ALJ follows a five-step process. 20 C.F.R. § 404. 1520(a). The claimant bears
22
the burden of proof on the first four steps, but at step five, the burden shifts to the
23
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
24
At the first step, the ALJ determines whether the claimant is engaging in
25
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not
26
disabled and the enquiry ends. Id. At step two, the ALJ determines whether the claimant
27
has a “severe” medically determinable physical and mental impairment. 20 C.F.R. §
28
404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step
-5-
1
three, the ALJ considers whether the claimant’s impairment or combination of
2
impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P
3
of 20 C.F.R. Pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically
4
found to be disabled. Id. At step three, the ALJ considers whether the claimant’s
5
impairment or combination of impairments meets or medically equals an impairment
6
listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If
7
so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step
8
four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”)
9
and determines whether the claimant is still capable of performing past relevant work. 20
10
C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If
11
not, the ALJ proceeds to the fifth and final step, where the ALJ determines whether the
12
claimant can perform any other work based on the claimant’s RFC, age, education, and
13
work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If
14
not, the claimant is disabled.
15
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
16
activity since May 20, 2011. At step two, the ALJ found that Plaintiff has the following
17
severe impairments: low back pain secondary to degenerative disc disease, peripheral
18
vascular disease (PVD) of the lower extremities, noninsulin-dependent diabetes mellitus,
19
gastroesophageal reflux disease (GERD) status post partial colon resection, arthritis of
20
both knees, coronary artery disease (CAD) with hypertension and status post stent
21
placement, and chronic obstructive pulmonary disease (COPD) with tobacco dependence.
22
At step three, the ALJ determined that Plaintiff does not have an impairment or
23
combination of impairments that meets or medically equals an impairment listed in
24
Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff
25
has the RFC to perform the full range of light work as defined in 20 C.F.R. §§
26
404.1567(b) and 416.967(b). The ALJ concluded that the claimant is capable of
27
performing past relevant work as a data entry clerk and telephone sales representative.
28
-6-
1
V.
Analysis
2
Plaintiff argues the ALJ’s RFC determination in step four was defective for two
3
reasons: (1) the ALJ erroneously weighed medical source evidence; and (2) the ALJ
4
improperly evaluated Plaintiff’s credibility and discounted her subjective testimony.
5
Plaintiff does not dispute steps one through three of the ALJ’s disability determination.
6
The Court will address each argument below.
7
8
A.
Weighing of Medical Source Evidence
1.
Legal Standard
9
The Ninth Circuit distinguishes between the opinions of treating physicians,
10
examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,
11
830 (9th Cir. 1995). Generally, an ALJ should give the greatest weight to a treating
12
physician’s opinion and more weight to the opinion of an examining physician than to
13
one of a non-examining physician. Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir.
14
1995); 20 C.F.R. §404.1527(c)(2)-(6) (listing factors to be considered when evaluating
15
opinion evidence, including length of examining or treating relationship, frequency of
16
examination, consistency with the record, and support from objective evidence). If it is
17
not contradicted by another doctor’s opinion, the opinion of a treating or examining
18
physician can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830
19
(citing Embrey v. Brown, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion of a
20
treating or examining physician “can only be rejected for specific and legitimate reasons
21
that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing
22
Andrews, 53 F.3d at 1043).
23
An ALJ can meet the “specific and legitimate reasons” standard “by setting out a
24
detailed and thorough summary of the facts and conflicting clinical evidence, stating his
25
interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th
26
Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set
27
forth [her] own interpretations and explain why they, rather than the doctors’, are
28
correct.” Embrey, 849 F.2d at 421-22.
-7-
1
The Commissioner is responsible for determining whether a claimant met the
2
statutory definition of disability and does not give significance to a statement by a
3
medical source that the claimant is “disabled” or “unable to work.” 20 C.F.R. §
4
416.927(d).
5
2.
Rachel Sy, D.O.
6
In assessing Plaintiff’s RFC, the ALJ examined the entire record and discounted
7
the assessments of treating physician, Dr. Rachel Sy, D.O. A.R. 125. Plaintiff argues
8
that the ALJ committed legal error by improperly discounting Dr. Sy’s opinion. Doc. 23
9
at 15-23. However, the ALJ afforded lesser weight to Dr. Sy’s opinions because (1) the
10
opinions were inconsistent with medical records showing Plaintiff recovered well after
11
surgery, A.R. 129; (2) Dr. Sy’s medical notes were contrary to her opinions, A.R. 129;
12
(3) the opinions were not based on adequate clinical findings, A.R. 125; and (4) Dr. Sy’s
13
findings were contradicted by the findings of examining physician Dr. Elizabeth A.
14
Ottney, D.O. and non-examining physicians Dr. James J. Green and Dr. Christopher
15
Maloney. A.R. 50-52, 768-78.
16
On March 28, 2011, Dr. Sy filled out a check box form where she opined that
17
Plaintiff could lift or carry fewer than ten pounds occasionally and frequently, stand or
18
walk fewer than two hours in an eight-hour day, sit only three hours in an eight-hour day,
19
and alternate sitting and standing every half hour. A.R. 908-10.
20
The ALJ’s reasons for discounting Dr. Sy’s opinions are specific, legitimate, and
21
supported by substantial evidence. The ALJ discounted treating physician Dr. Sy’s
22
opinion and afforded greater weight to the opinions of non-treating sources because Dr.
23
Sy’s response to the March 2011 check box form was contrary to her own treatment notes
24
and the medical record as a whole.
25
First, the ALJ found that Dr. Sy’s opinion was inconsistent with the medical
26
record showing Plaintiff recovered well after surgery and responded effectively to
27
medication therapy. A.R. 129. The ALJ’s statements regarding the weight she accorded
28
Dr. Sy’s opinions are found on page 5 of his decision (A.R. 125) and his discussion of the
-8-
1
medical evidence is found on pages 5-9 (A.R. 125-129). The decision makes clear that
2
the ALJ relied on record evidence to support all of the reasons listed in his discussion of
3
Dr. Sy’s opinions.
4
The ALJ notes the following: a March 2009 general examination finding that
5
despite reports of radiculopathy, Plaintiff was able to heel-walk and toe-walk without any
6
difficulty and without the use of an assistive device (A.R. 127); physical exams were
7
unremarkable and showed normal gait, no edema, and full muscle strength (A.R. 127);
8
unremarkable cardiovascular and gastrointestinal follow-up exams (A.R. 127); in an
9
October 2010 cardiologist exam, Plaintiff denied shortness of breath, dizziness, and
10
fainting (A.R. 128, 789); treatment for Plaintiff’s conditions were conservative with
11
routing prescriptions for medications, which she reported were effective and decreased
12
her symptoms (A.R. 127-129); and a motor exam by Dr. Ottney where the Plaintiff was
13
able to tandem walk, squat, hop, had a full range of motions in her major joints, and
14
demonstrated normal fine and gross motor function (A.R. 129). The Court finds the
15
ALJ’s explanation is supported by substantial evidence.
16
Second, the ALJ reasoned that Dr. Sy’s opinion is inconsistent with her own
17
medical notes, which indicate Plaintiff had recovered well from her surgeries and had
18
normal physician examinations. A.R. 127. An incongruity between the treating doctor’s
19
questionnaire and her medical records is a specific and legitimate reason for rejecting the
20
doctor’s opinion of claimant’s limitation. Tommasetti v. Astrue, 533 F. 3d 1035, 1041
21
(9th Cir. 2008) (affirming the ALJ’s finding that a physician’s questionnaire responses
22
were inconsistent with the medical record when the physician’s own records did not
23
provide support for the limitations set out in the questionnaire). The ALJ cited to several
24
records showing an inconsistency between Dr. Sy’s original findings and her responses to
25
the medical questionnaire. A.R 129. For example, the ALJ cited to medical notes from
26
February 2010 where Dr. Sy opined that Plaintiff had a “full range of motion” in her
27
extremities and had “no tenderness” in her back. Id. The ALJ also cited to Dr. Sy’s
28
medical notes finding that the Plaintiff’s pain specialist was “not doing any intervention”
-9-
1
and the Plaintiff looked “comfortable.” A.R. 129, 807. Thus, this finding was a specific
2
and legitimate reason supported by substantial evidence for the ALJ to discount the
3
treating physician’s opinions.
4
Third, the ALJ found that Dr. Sy’s opinions that Plaintiff had moderately severe
5
limitations in several areas of mental functioning were contrary to Plaintiff’s mild
6
psychological
7
unremarkable mental status exams. A.R. 125. An ALJ may reject a treating physician’s
8
opinion if the opinion is brief, conclusory, and inadequately supported by clinical
9
findings. Bray v. Comm’r of Soc. Sec. Admin., 554 F. 3d 1219, 1228 (9th Cir. 2009)
10
(finding that an ALJ properly discounted a treating physician’s opinion that was not
11
based on the physician’s own clinical findings). Although Plaintiff’s mental status is not
12
an issue in this appeal,2 Dr. Sy’s opinions show that she was inclined to find moderately
13
severe to severe limitations even without clinical findings to support such opinions. The
14
ALJ found little support for Dr. Sy’s psychological findings and thus discounted her
15
opinions. Thus, substantial evidence supported the ALJ’s decision not to rely on Dr. Sy’s
16
opinions.
symptoms,
positive
response
to
psychotropic
medication,
and
17
Fourth, Dr. Sy’s medical opinions were contradicted by the opinions of Dr.
18
Elizabeth A. Ottney, D.O., an examining physician who found Plaintiff had greater
19
abilities than those identified in Dr. Sy’s opinions. The ALJ noted that Dr. Ottney found
20
Plaintiff had a “full range of motion of all major joints” and “full muscle strength in her
21
upper and lower extremities.” A.R. 129. The ALJ also noted that Dr. Ottney opined
22
Plaintiff ambulated with a “normal gait and pace.” Id. Dr. Ottney opined Plaintiff was
23
capable of occasionally lifting twenty pounds and frequently lifting ten pounds without
24
any limitations in standing, walking, sitting, climbing ramps and stairs, stooping,
25
kneeling, crouching, crawling, reaching, handling, fingering, or feeling. A.R. 768-78. The
26
ALJ accorded “great weight” to Dr. Ottney’s opinion because it was consistent with the
27
28
2
Plaintiff states in her Opening briefing that the ALJ’s treatment of Plaintiff’s mental
impairments is not “directly relevant to this appeal.” Doc. 23 at 28.
- 10 -
1
medical record as a whole showing Plaintiff responded well to conservative treatment and
2
was not compliant in treatment recommendations. A.R. 130.
3
Dr. Sy’s opinions were also contradicted by state agency physicians Dr. James J.
4
Green and Dr. Christopher Maloney. AR 50-52; A.R. 87. Like Dr. Ottney, Drs. Green
5
and Maloney opined that Plaintiff could lift and carry twenty pounds occasionally and ten
6
pounds frequently. They also agreed that Plaintiff could sit and stand about six hours in
7
an eight-hour workday. A.R. 130.
8
Dr. Sy’s opinions were contradicted by the opinions of three medical sources.
9
Therefore, the ALJ therefore could discount Dr. Sy’s opinion for specific and legitimate
10
reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830-31.
11
Plaintiff argues that the ALJ committed legal error by placing “great weight” on
12
the medical opinion of examining physician Dr. Ottney and “significant weight” to a
13
portion of the opinions of Dr. Green and Dr. Maloney. Doc. 23 at 15. Although Plaintiff
14
is correct that ALJs must generally accord the greatest weight to the medical opinion of a
15
treating physician and reduced weight to non-treating and non-examining physicians, the
16
contradicted opinions of treating physicians can be discounted for specific and legitimate
17
reasons supported by substantial evidence. Lester, 81 F.3d at 830 (citing Embrey, 849
18
F.2d at 422).
19
The Court concludes that the ALJ provided specific and legitimate reasons,
20
supported by substantial evidence, for discounting Dr. Sy’s opinions. The decision was
21
not legal error.
22
B.
23
Plaintiff’s Subjective Testimony
1.
Legal Standard
24
In evaluating the credibility of a claimant’s testimony regarding subjective pain or
25
other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine
26
whether the claimant presented objective medical evidence of an impairment that could
27
reasonably be expected to produce some degree of the pain or other symptoms alleged;
28
and if so with no evidence of malingering, (2) reject the claimant’s testimony about the
- 11 -
1
severity of her symptoms only by giving specific, clear, and convincing reasons for the
2
rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). General findings are
3
insufficient; rather, the ALJ must identify what testimony is not credible and what
4
evidence undermines the claimant’s complaints. Berry v. Astrue, 622 F.3d 1228, 1234
5
(9th Cir. 2010). The ALJ must make a credibility determination with findings sufficiently
6
specific to permit the court to conclude that the ALJ did not arbitrarily discredit
7
claimant’s testimony. Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).
8
In weighing a claimant’s credibility, the ALJ may consider a claimant’s reputation
9
for truthfulness, inconsistencies either in the claimant’s testimony or between the
10
claimant’s testimony and conduct, the claimant’s daily activities, the claimant’s work
11
record, and testimony from physicians and third parties concerning the nature, severity,
12
and effect of the symptoms of which the claimant complains. Smolen v. Chater, 80 F.3d
13
1273, 1284 (9th Cir. 1996).
14
2.
The ALJ’s Assessment of Plaintiff’s Credibility
15
First, the ALJ found that Plaintiff’s medically determinable impairments could
16
reasonably be expected to cause the alleged symptoms. A.R. 129. Then, the ALJ found
17
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of the
18
symptoms were not credible to the extent they were inconsistent with the RFC
19
assessment. Id.
20
The ALJ found that Plaintiff had made inconsistent statements regarding the
21
effectiveness of her treatment. Id. The ALJ made these findings3 on page 9 of his
22
decision. A.R. 129. Plaintiff argues that her testimony was not inconsistent because
23
epidural injections are not meant to provide permanent relief. However, Plaintiff testified
24
at the hearing that she did “not experience any relief” after the epidural injections. A.R.
25
31- 32. Thus, her testimony three years later that the injections were unhelpful was not
26
27
28
3
The ALJ explained that Plaintiff testified the epidural steroid injections did not help her
pain symptoms. However, a review of the record indicates that Plaintiff told pain
management specialist Dr. Asim Khan her radicular pain “improved significantly with
epidural steroid injections and medication.” A.R. 129, 903.
- 12 -
1
credible. The ALJ correctly found Plaintiff’s statement was inconsistent with the medical
2
record showing the injection provided her symptomatic relief. A.R. 129.
3
The ALJ also noted that Plaintiff’s statements of disabling limitations were
4
inconsistent with the objective medical record. The ALJ found that Plaintiff’s medical
5
record showed normal gait, muscle strength, and a full range of motion. A.R. 127, 129.
6
The ALJ then found that Plaintiff had mostly normal examinations and diagnostic
7
findings. Id. The ALJ cited to the medical record showing Plaintiff had an unremarkable
8
heart exam, controlled cardiac symptoms, and “mild” peripheral vascular disease. A.R.
9
128. In addition, the ALJ found that Plaintiff’s gastrointestinal symptoms were mostly
10
normal with only occasional heartburn, some difficulty swallowing, and “mild”
11
esophagitis. Id. Plaintiff argues that the ALJ did not possess the professional
12
qualifications for an independent analysis of the medical evidence. However, the ALJ did
13
not independently analyze the medical evidence. The ALJ cited to physician notes and
14
objective evidence in the record to support his findings. For example, the ALJ notes that
15
Plaintiff’s stress tests were “negative” and an upper gastrointestinal endoscopy was
16
unremarkable. A.R. 128. The ALJ also quoted the results of the pulmonary function test
17
showing “unlikely” obstruction. Id. Lastly, the ALJ cited to Dr. Tosca’s treatment notes
18
that indicated Plaintiff’s diabetes was “controlled” on a diet. Id. The ALJ therefore did
19
not replace findings from diagnostic or physical examinations with his own assessments.
20
Third, the ALJ noted that Plaintiff’s testimony was inconsistent because her
21
symptoms are well managed by conservative treatment. The ALJ must carefully consider
22
the type and effectiveness of treatment when evaluating symptoms, including pain. 20
23
C.F.R. § 404.1529(c)(3)(iv)-(v). Impairments that can be controlled effectively with
24
medication are not disabling for the purpose of determining SSI benefit eligibility. Warre
25
v. Com’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ cited to
26
objective evidence in the record showing Plaintiff’s gastrointestinal, cardiovascular, and
27
diabetic symptoms were effectively managed with medication and diet. A.R. 128-29.
28
Plaintiff argues that the ALJ failed to fully address all of Plaintiff’s symptoms. (Doc. at
- 13 -
1
29.) However, in his decision, the ALJ cited to a June 2009 examination where the
2
patient was “doing well” on her medication regimen and denied any side effects. A.R.
3
127.
4
Fourth, the ALJ found Plaintiff’s symptom testimony less than credible based on
5
her reported good activities of daily living. An ALJ may consider a claimant’s daily
6
activities in weighing a claimant’s credibility. Orn, 495 F. 3d at 636. In Orn, the court
7
reasoned that an “adverse credibility finding based on activities may be proper if a
8
claimant engages in numerous daily activities involving skills that could be transferred to
9
the workplace.” Id. at 639. The ALJ noted that the claimant can perform standard
10
household chores—including cooking, cleaning, mopping, laundry, and yard work. A.R.
11
125, 129. The ALJ also cited to evidence that Plaintiff assists her grandchildren with
12
homework, shops for groceries, and regularly provides childcare for five grandchildren.
13
A.R. 129.4
14
Plaintiff’s argues that the ALJ’s citations to the record do not support his findings.
15
She argues that the ALJ made no finding that she spent a substantial part of a typical day
16
engaged in activities inconsistent with the finding of disability. The Social Security Act
17
does not require that claimants be utterly incapacitated to be eligible for benefits because
18
home activities are not easily transferable to what may be the more grueling environment
19
of the workplace where it might be impossible to periodically rest or take medication.
20
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1986). But if a claimant “engages in
21
numerous daily activities involving skills that could be transferred to the workplace, the
22
ALJ may discredit the claimant’s allegations upon making specific findings relating to
23
those activities.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The ALJ stated
24
that Plaintiff can perform “standard household chores, assist her grandchildren with
25
26
27
28
4
The ALJ also cited to the exhibits that describe Plaintiff’s daily activities. A.R. 125,
129. The evidence shows that Plaintiff does “household chores” and “play[s] games”
with her grandchildren. A.R. 979. Also, the Plaintiff exercises 1-2 times a week by
walking 15-30 minutes, mops, washes dishes, does laundry, folds clothes, does grocery
shopping, and makes dinner. A.R. 730, 979. The Plaintiff told Dr. Tosca that she “can’t
rest much because she is caring for 5 children.” A.R. 821.
- 14 -
1
homework, shop for groceries, and regularly provide childcare.” The ALJ then found that
2
Plaintiff’s “level of activity is wholly inconsistent” with her testimony that she cannot sit,
3
stand, or walk for brief periods. Id.
4
When “evidence is susceptible to more than one rational interpretation, one of
5
which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.
6
Barnhart, 278 F.3d at 954 (finding that when an ALJ’s credibility determination is
7
supported by substantial evidence in the record, the reviewing court may not engage in
8
second-guessing). Here, the ALJ’s credibility determination was proper. The ALJ gave
9
clear and convincing reasons supported by substantial evidence for discounting Plaintiff’s
10
testimony and used ordinary techniques of credibility evaluation. Thus, the ALJ’s reasons
11
for rejecting Plaintiff’s subjective testimony are sufficient to meet the standard required
12
by the Ninth Circuit.
13
VI.
Conclusion
14
The Court has considered the record as a whole, weighing both the evidence that
15
supports and that which detracts from the ALJ’s conclusion. The Court concludes that the
16
ALJ provided specific and legitimate reasons, supported by substantial evidence, for
17
discounting Dr. Sy’s opinions, and the ALJ’s decision is not based on legal error. The
18
Court also concludes that the ALJ provided clear and convincing reasons supported by
19
substantial evidence for finding Plaintiff less than fully credible.
20
Accordingly,
21
IT IS ORDERED that the final decision of the Commissioner of Social Security
22
23
is affirmed. The Clerk shall enter judgment accordingly and terminate this case.
Dated this 19th day of March, 2015.
24
25
Honorable John Z. Boyle
United States Magistrate Judge
26
27
28
- 15 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.